R Amin v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 24 June 2014 |
| Neutral Citation | [2014] EWHC 2322 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12634/2013 |
| Date | 24 June 2014 |
[2014] EWHC 2322 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/12634/2013
Mr M Biggs (instructed by Universal Solicitors) appeared on behalf of the Claimant
Mr R Fortt (instructed by Treasury Solicitors) appeared on behalf of the Defendant
There are before the court a number of cases which, in one form or another and whether at permission or substantive stage, raise issues about the lawfulness of the private and family life provisions of the Immigration Rules, changed by HC 194, and which commenced with 276ADE in relation to private life and are embodied in Appendix FM in relation to family life.
One of those claims, involving three people of Bangladeshi nationality, is at the substantive stage. Proceedings were initiated in the Upper Tribunal. They were transferred by the Upper Tribunal to the Administrative Court because they raised this issue as to the vires of the Immigration Rules. The transfer order said that the proceedings as a whole were to be determined by a High Court Judge. There was obvious sense in that order because a High Court Judge has power to deal with all the issues sitting as a High Court Judge or, as necessary, a judge of the Upper Tribunal.
The matter was considered on paper by HHJ Blackett. HHJ Blackett granted permission, the scope of which may be for debate here after, saying that the issue of the compatibility of Paragraph 276ADE with Article 8 had not been addressed in the acknowledgment of service. He then said that the point should be considered by the High Court "before being passed back to the UT for a full appeal on the merits".
I add at this stage that a judge granting permission for a non-mandatory transfer point to be considered ought to consider very carefully whether the convenient disposal of the entire proceedings would not be better achieved by the whole being dealt with by a High Court Judge in the Administrative Court, who has dual jurisdictional competence should that be necessary. This is a case in which, as the order transferring the case from the Upper Tribunal to the Administrative Court made clear, was just such a case.
The Claimants in this substantive matter are, first, the man who entered the United Kingdom in 2003 with valid leave to enter expiring in 2009. The second is his partner — his now wife — whom he met in 2004 and married in 2005. Together they have a child born in the United Kingdom who is the third Claimant. They have overstayed their leave. An appeal to the First Tier Tribunal was dismissed. The details of that have not been provided to the court. On 26 February 2013, the Claimants made an application, as it is put in the grounds of claim, for leave to remain outside the Immigration Rules. That application was refused on 5 June 2013.
The Claimants contend in the grounds, though, as I have said, without providing any of the relevant supporting material and it may not have been provided to the Secretary of State either in their application, that their private life would be infringed by a refusal of leave to remain.
The grounds also challenge the application to them of Paragraph 276ADE on the grounds that it is ultra vires. HC 194 as a whole is said to be ultra vires. The language of the claim is to be found in more than 30 which have been brought on behalf of various clients by Universal Solicitors. The argument has had the benefit of the skill and refinement which Mr Biggs has brought to it, for which the court is grateful.
He has widened his argument, encompassing points made by other claimants whose permission application is before the court so that it goes beyond, but that is legitimate, the scope of the vires of Paragraph 276ADE to encompass more generally both the 276ADE private life paragraphs and Appendix FM family life.
Mr Biggs contends that the power to make Immigration Rules derives from the provisions of section 3(2) of the Immigration Act 1971:
"The Secretary of State shall from time to time… lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…"
He contends that the provisions to which I am going to come are ultra vires that sub-section because they permit or require decisions to be made which may, depending on the circumstances of the case, breach Article 8 of the ECHR.
He further submits that the Rules are not to be read down pursuant to sections 3(1) and 3(2) of the Human Rights Act 1998 because they are not subordinate legislation within the meaning of that Act to which the section 3 interpretative duty applies.
Paragraph 276ADE sets out the requirements to be met by an applicant for leave to remain on the grounds of private life, by reference to age and various other grounds. BE deals with the grant of limited leave to remain on the grounds of private life and for a period not exceeding 30 months. 276CE says that where those requirements in Paragraph 276ADE are not met "limited leave to remain on the grounds of private life in the UK is to be refused". There are other provisions in 276DE, DF and DG which deal with the grant of indefinite leave to remain on the grounds of private life.
Appendix FM dealing with family members says in the paragraph dealing with its purpose, GEN.1.1, that the Appendix reflects how under Article 8 of the Human Rights Convention "the balance will be struck between the right to respect for private and family life" and the legitimate aims to which Article 8(2) requires regard to be had.
There is no doubt that Appendix FM contains a wide variety of detailed provisions which cover many of the circumstances which would arise where a family member contends that a decision in relation to immigration status or removal would breach his or her family rights or the rights of other members of the family. It is plain that it is not an exhaustive code. It is difficult to imagine that one could have an exhaustive code unless it were expressed in the most general language, because the very variety of human and family circumstances which are brought into play in Article 8 cases prevents specificity on an exhaustive basis.
The Appendix does, however, as with 276CE, contain a number of passages in which it is said that if a requirement is not met, leave or entry clearance will be refused. Thus, GEN.2.2 states:
"If a person does not meet the requirements of paragraph GEN.2.1 entry will be refused."
Again, section D-ECP headed "Decision on application for entry clearance as a partner" contains D-ECP.1.2 which says:
"Where the applicant does not meet the requirements for entry clearance as a partner the application will be refused."
D-ECP.1.1 sets out what those requirements are.
In those two paragraphs are provisions which say that entry will be granted if the requirements are met and refused if not.
A similar pattern can be seen in relation to decisions on an application for indefinite leave to remain as a partner. Likewise in relation to limited leave to remain, there are rules in relation to a partner for immigration status. It provides that an appellant must not be in the UK in breach of a variety of requirements; the clear indication being that if a partner is in the UK in breach of those circumstances, they will fail in their application for limited leave.
At the core of Mr Biggs' argument is the contention that the Secretary of State has no power to lay before Parliament Immigration Rules which expressly and exhaustively preclude the Secretary of State under her practice of granting permission to avoid or obliging her to refuse permission where that would involve, a breach of Article 8.
Mr Biggs drew my attention to two cases in which the courts have considered what the outcome should be where it considered that Rules were expressed in too restrictive terms to accommodate the full requirements of Article 8.
The first was Zhang v Secretary of State for the Home Department [2013] EWHC 891 Admin which concerned the effect of Rules which, on their face, required somebody who sought an extension of leave, but in a different category from that which she had previously enjoyed, to depart the United Kingdom to make the application for leave where that would involve separation from her new husband for a period of about two months.
Turner J considered that requiring her to leave the United Kingdom for two months or so in order to make an application for entry clearance from abroad would be a disproportionate interference with her Article 8 rights. He did not, however, strike down the Rule which would require that. He found that it could not lawfully be applied to the Claimant in that case; see paragraph 81.
It follows, in my judgment, from that that he regarded the Rule as deficient in its express language, but not one which prevented him concluding that the Secretary of State's decision was unlawful, and not from the decision she ought to have reached.
Mr Biggs also referred me to the decision of Blake J in MM and Others v Secretary of State for the Home...
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Treebhawon and Others (NIAA 2002 Part 5A – Compelling Circumstances Test)
...of the Rules have generated much jurisprudence during the last two years. In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised th......
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Upper Tribunal (Immigration and asylum chamber), 2015-11-19, [2015] UKUT 674 (IAC) (Treebhawon and others (section 117B(6)))
...of the Rules have generated much jurisprudence during the last two years. In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised th......
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...Rights Act 1998. It is convenient to adopt the summary in Treebhawon, [5]: “In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised ......
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Upper Tribunal (Immigration and asylum chamber), 2017-01-09, [2017] UKUT 13 (IAC) (Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test))
...of the Rules have generated much jurisprudence during the last two years. In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised th......